STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF MARION COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 86-2715
)
MICHAEL FORT, )
)
Respondent. )
) DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 86-2875
)
MICHAEL FORT, )
)
Respondent. )
)
RECOMMENDED ORDER
These cases came on for hearing, after consolidation, before P. Michael Ruff, duly designated Hearing Officer, on December 16, 1986, in Ocala, Florida. The appearances were as follows:
APPEARANCES
For Petitioners: William E. Williams, Esquire
Rex D. Ware, Esquire
111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302
For Respondent: Philip J. Padovano, Esquire
Post Office Box 873 Tallahassee, Florida 32302
This cause was initiated on or about August 1985 when the Petitioner, the School Board of Marion County, suspended the Respondent, Michael Fort, from his employment with the School Board as a result of the Respondent's arrest on charges concerning alleged lewd and lascivious acts involving a child. The Respondent timely requested a formal hearing seeking reinstatement to his position with the Petitioner, School Board of Marion County (School Board), also requesting payment of back pay from the date of his suspension. An Administrative Complaint was filed by the Board on September 5, 1986.
That complaint alleged that the Respondent was under annual contract with the School Board until June 7, 1985, and that during the 1984-85 school year the
Respondent homosexually assaulted a minor student in the Respondent's residence. Additionally, it was alleged that on or about May 23, 1985, the Respondent approached another minor student at the middle school where he was employed and placed his hand in the student's pants without the student's permission. The complaint also charges that during the 1984-85 school year the Respondent purchased beer and offered it to three male students of the middle school at his home, where the students consumed the beer in his presence. It is also alleged that the Respondent was arrested and charged with lewd and lascivious acts committed upon a minor, that he pled nolo contendere to attempted sexual battery and was sentenced to ten years probation, fined $200 and required to undergo mental health counseling, as well as complete 100 hours of community service.
An additional condition of that probation was that he have no supervisory contact with any person under the age of 16.
It is alleged that the Respondent committed acts of immorality and such notoriety as to bring himself into public disgrace and disrespect in violation of Section 231.36, Florida Statutes, and it is further alleged that the above acts constituted misconduct in office in violation of Section 231.36, Florida Statutes, and Rule 6B-4.09, Florida Administrative Code, by violation of the "principles of professional conduct for the educational profession in Florida" such as to seriously impair his effectiveness in the school system within the purview of Rule 6B-1.06, Florida Administrative Code.
On or about July 9, 1986, Petitioner, Ralph D. Turlington as Commissioner of Education, filed an Administrative Complaint against the Respondent alleging the same acts of misconduct as pled in the School Board's complaint. That complaint was subsequently amended to substitute Betty Castor, the current Commissioner of Education, as a party. That complaint alleged that the Respondent violated Section 231.28(1)(c), Florida Statutes, by committing acts of gross immorality or moral turpitude; that the Respondent violated Section 231.28(1)(f), Florida Statutes, by being guilty of personal conduct which reduced his effectiveness as an employee of the School Board; and Section 231.28(1)(h), as well as Rule 6B-1.06(3)(a) and (h), Florida Administrative Code, by failing to make reasonable efforts to protect students from conditions harmful to learning or to their health and safety and by exploiting his professional relationship with students for personal gain or advantage.
The respective cases were assigned to the undersigned Hearing Officer and were consolidated. The cause came on for hearing, after one continuance, as noticed. The Petitioners called as witnesses Patrick Hammer, Steve Hall, Richard Slaughter, Eddie Ericson, Darien Houston and James L. Skaggs. The Petitioners introduced eight exhibits, all of which were admitted into evidence. The Respondent testified on his own behalf and introduced one exhibit into evidence. The Petitioners have filed two motions to conform the pleadings to the evidence. The first motion concerns factual allegations in paragraphs 2 and
3 of both complaints. The Petitioners had alleged that the Respondent had committed sexual battery upon a student by "an attempt to place his mouth on the penis of the student." Because of the evidence adduced at trial, the Petitioners moved to amend those factual allegations to read to the effect that during the 1984-85 school year, the Respondent had a minor student spend the night at his apartment during the course of which evening, while the student was asleep, the Respondent allegedly undressed himself and the student and fondled the student's penis in a lewd and lascivious manner and attempted to have anal intercourse with the minor student. Thereafter, on April 13, 1987, an additional motion to conform pleadings to the evidence was filed by the Petitioners regarding the same paragraphs 2 and 3 of the Petitioners' complaints to further amend the factual allegations referenced above (to conform to the
evidence) to the effect that the events delineated above occurred during the 1983-84 school year, rather than the previously alleged 1984-85 school year. Additionally, the Petitioners moved ore tenus at hearing to amend the addendum clause of the complaint to request, as to the Commissioner of Education's complaint, that that Petitioner was seeking to permanently revoke the teaching certificate. The various motions to amend were not objected to and are granted.
The parties elected to have the proceedings transcribed and the transcript of the final hearing was filed with the Division of Administrative Hearings on March 24, 1987, after which the parties were allowed fifteen days in which to file their Proposed Recommended Orders, which were timely filed. The Proposed Findings of Fact embodied in those Proposed Recommended Orders are addressed in this Recommended Order and are treated once again in the Appendix attached hereto and incorporated by reference herein.
The issues to be resolved in this proceeding concern whether the Respondent had a valid contract with the School Board of Marion County at the time of his suspension; whether that Petitioner should take disciplinary action against the Respondent for the reasons alleged in its Administrative Complaint by terminating him from any right to employment and retaining back pay for the period of his suspension, as well as whether the Education Practices Commission should take disciplinary action against the Respondent for the reasons alleged in its Administrative Complaint in Case No. 86-2875 by revocation of his license or other sanction. Included within this latter general issue is the question of whether the Respondent was the holder of a valid certificate when the complaint was filed in Case No. 86-2875 and therefore whether the Commissioner and the Education Practices Commission can proceed against the certificate.
FINDINGS OF FACT
The Respondent, Michael Fort, at times pertinent to the charges in the Administrative Complaints, held teacher's certificate number 514033, issued by the State of Florida Department of Education (Department). That certificate authorized practice as a teacher in the area of music education. The Respondent was employed as a teacher at Lake Weir Middle School in the Marion County School District. The Respondent was under an annual contract with that school system from November 23, 1983, through the 1984-85 school year.
The Respondent's last annual contract expired on June 7, 1985. The Respondent's teacher's certificate expired on June 30, 1985. Some time prior to the expiration of his teacher's certificate, the Respondent applied to the Department for its renewal. That application still pends before the Department.
In October 1983, the Respondent had a minor student spend the night at his apartment. The minor student had previously been a close friend of the Respondent and had socialized with him in the past, including spending the night at his residence on other occasions. The Respondent had entered into a close, friendly relationship with the minor, Darien Houston, by frequently letting him stay at his residence during periods of time when Darien Houston's parents were fighting or otherwise engaging in domestic discord, which apparently was very disturbing to the student. Darien Houston, although a student in the Marion County School System, was not a student of the Respondent. Indeed, the Respondent was not yet employed by that school district.
In any event, during the course of the evening in question, while they were sitting near each other watching television, the Respondent placed his hand on the student's leg and the student requested that he remove his hand. The
student at the time thought Fort was joking or had no serious intent by this action. Fort then went to bed and the student went to bed, sleeping on the floor in his jeans in a sleeping bag. Some time later that night, the student was awakened and realized that the Respondent had undressed himself and undressed the student and had proceeded to place his hand on and fondle the student's penis. He thereafter attempted to roll Houston over onto his stomach in spite of Houston's objections. In response to the student's objections, the Respondent made a statement to the effect, "Do you want to do it with me?" The student continued to object and to retreat from the Respondent's advances. He retreated to the bathroom where he locked himself in and remained for the remainder of the night. The student was embarrassed because of the incident and elected not to report it to school officials or others for approximately a year and a half. However, Houston did tell his best friend what had happened, who in turn informed Houston's mother of the incident. Eventually, Houston's brother informed another individual of the occurrence, who then informed Mr. Springer, the principal at Lake Weir Middle School, of the incident. Darien Houston, a student there, was then called before Mr. Springer, who investigated the matter. Houston related the information about the subject occurrence to him, in approximately May 1985. Thereafter, the criminal proceeding against the Respondent related to this incident and the instant administrative Prosecutions ensued.
The matter became public knowledge among students at Lake Weir Middle School, who teased Houston about the incident, causing him great embarrassment and humiliation. The occurrence was widely reported in local newspapers.
Sometime in May 1985, while a teacher at Lake Weir Middle School, during the course of a puppet show being Presented in a sixth grade classroom, Respondent stuck his hand down the back of a minor male student's pants between his underwear and his trousers. This action by the Respondent shocked and embarrassed the student, although it was not established that any bystanders, of which there were a number present, observed the incident. The student, Patrick Hammer, was embarrassed to tell anyone of the occurrence, but ultimately informed his teacher of the incident by writing a note to the teacher concerning it. Other students at the school ultimately became aware of this and teased Patrick Hammer about it, causing him embarrassment and humiliation.
In approximately May 1985, the Respondent attended a party at a local hospital. The Respondent was in the company of three minor male students who were then enrolled at Lake Weir Middle School. The students, Steve Hall, Richard Slaughter and Eddie Ericson, or some of them, were drinking beer from a keg or draft dispenser at the party. Steve Hall's mother, who was employed at the hospital, was present at the party and was aware that her son was drinking beer.
All three of the boys later left the party and went with Mr. Fort to his apartment. While en route, the Respondent stopped at an ABC Liquor Store and purchased approximately two six-packs of beer. After purchasing the beer, the Respondent took the three students to his apartment where the students swam in the swimming pool and, in his presence and with his knowledge, drank the beer that the Respondent had purchased. It was not established that the Respondent bought the beer with the specific intent of giving it to the students but, by his own admission, he offered no objection to the students' consumption of the beer in his presence at his residence.
On May 12, 1986, the Respondent pled nolo contendere to one count of attempted sexual battery and one count of lewd and lascivious behavior. He was
sentenced to ten years probation, fined $200, ordered to undergo mental health counseling, to complete 100 hours of community service and to refrain from any custodial or supervisory contact with any person under the age of 16 years.
Respondent's arrest, the circumstances surrounding the charges and his plea regarding the above incidents received widespread publicity in the local media and was known to students, faculty and other School Board personnel and the public at large.
On or about April 10, 1985, the Respondent received a letter from Nick Marcos, Assistant Superintendent of Administrative Services with the School Board of Marion County, informing him that he would be reappointed to a position as an annual contract teacher with the Marion County School System as soon as he had been issued a regular or temporary teaching certificate for the 1985-86 school year. On or about May 16, 1985, the Respondent submitted a reapplication for a temporary certificate to the Florida Department of Education.
On or about August 9, 1955, Respondent received a letter from R. S. Archibald, District School Superintendent, advising him that he had been suspended as an instructional employee of the Marion County School System, pending a meeting of the School Board. Thereafter, on or about August 19, 1985, the Respondent received a letter from Jim Ergle, as Chairman of the School Board, advising him of the Board's decision to suspend him without pay based upon the above-described arrest and charges.
In the April 10, 1985 letter, the Assistant Superintendent had informed him that he had been recommended for reappointment for the 1985-86 school year, but reminded him that he would have to renew his teaching certificate to be eligible for reappointment. Upon his application for renewal of his teaching certificate, the application demonstrated that all requirements for renewal had been met. His teaching certificate expired on June 30, 1985. The renewal application was never acted upon by the Department, although it informed Mr. Fort, sometime prior to August 1985, that his application was in order and the certificate would be forthcoming. His suspension without pay was predicated upon the charges pending before the Circuit Court for Marion County concerning the alleged sexual battery and lewd and lascivious conduct, and the letter informing Mr. Fort of it did not indicate that it was at all based on his failure to renew his teaching certificate.
The School Board employed the formal suspension process against the Respondent, although his express annual contract had already expired, in an abundance of caution because a grace period is normally allowed teachers to re- apply for renewal of their certificates after expiration and because the Board allows a grace period for reappointment of a contract teacher after the expiration of a teaching certificate, provided the teacher provides evidence that the certificate has been properly renewed. The Respondent was paid for all services rendered by him to the Marion County School Board through the last day of the 1984-85 school year, which was also the last day of his employment pursuant to his last express annual contract. He has never taught in the district since that time.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida statutes (1985).
The Petitioner's motion to amend the pleadings so as to conform to the evidence is granted for the reasons delineated above.
In view of the fact that the Respondent's issued teaching certificate expired on June 30, 1985, the Department's jurisdiction to proceed against the Respondent's licensure after that date must first be examined. While it is true that the Respondent's certificate expired on June 30, 1985, the Respondent timely petitioned for a renewal of his temporary certificate. That application was never denied, rather the Department, sometime before August 1985, upon inquiry, assured the Respondent that his application was in order and in process. In due course, the proceeding against the Respondent's licensure status was commenced by the Department of Education when it learned of the criminal and school Board charges. Unrefuted testimony shows that there is a customary grace period allowed by the Department for re-application and automatic renewal of licensure when certificates have expired. The Respondent applied for renewal even before his certificate's expiration date. The credible evidence establishes that there was no impediment to renewal of his licensure save the ministerial act of issuance of the certificate and transmittal of it to Mr. Fort. Thus it is concluded that Fort was clothed with, at least, an inchoate licensure status at the time the Department's charges were instituted. That is a sufficient jurisdictional basis for the Department of initiate this proceeding by which it seeks to impair that status. In an analogous context, see Boedy vs. DPR, Board of Medical Examiners, 433 So.2d 544 (Fla. App. 1 Dist. 1983); Couch vs. Turlinton, 465 So.2d 557, (Fla. App. 1 Dist. 1985)
Section 231.28(1), Florida Statutes, authorizes the Education Practices Commission (EPC) to revoke, suspend or otherwise impose any penalty provided by law if it can be shown a teacher has committed an act involving gross immorality or moral turpitude or has engaged in conduct which seriously reduces that person's effectiveness as an employee of the School Board or has violated rules of the State Board of Education, the penalty for which is revocation of a teaching certificate. Section 238.28(1)(c)(f)(h) , Florida Statutes, (1983, 1985)
Rules 6B-1.06(3)(a), Florida Administrative Code and 6B-1.06(3)(h), Florida Administrative Code, also pled as a basis for the Department's charges, respectively require that teachers, make reasonable efforts to protect students from conditions harmful to learning, health or safety and to refrain from exploiting a professional relationship with a student for personal gain or advantage.
There is no question that the substantial, credible evidence of record and the above Findings of Fact establish that the Respondent is guilty of conduct constituting acts of moral turpitude or gross immorality as to the conduct committed involving students Darien Houston and Patrick Hammer.
Although the above statutory section contains no definition of "gross immorality," guidance is afforded by the Petitioner's Rule 6B-4.09(2), Florida Administrative Code, which defines immorality as "conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community." The term "gross" within the statutory term "gross immorality" is viewed as immorality involving acts which are serious rather than minor in nature and which involve a flagrant disregard of the standard of moral conduct embodied in the above rule. See Education Practices Commission vs.
David Michael Knox, Case No. 81-056, Recommended Order (DOAH) May 18, 1981,
Final Order entered June 29, 1981. See also Negrich vs. Dade County Board of Public Instruction, 143 So.2d 498, 501 (Fla. 3rd DCA 1962).
"Moral turpitude" has been defined in State ex rel. Tullidge vs. Hollingsworth, 146 So. 660, 661 (Fla. 1932):
Moral Turpitude involved the idea of inherent baseness or depravity in the private social relations or duties owed by man to man, or man to society. (Citations omitted.) It has also been defined as anything done contrary to justice, honesty, principle, or good morals . . .
It is obvious that the Respondent's conduct involving students Houston and Hammer, and especially the former, is very serious and is characterized by a flagrant disregard for the standards of the above rule's definition of "immorality." Such acts, especially with minors in their formative years, patently exhibit the elements of baseness and depravity by which the long- accepted doctrine of the Tullidge decision, supra, defines "moral turpitude."
In Tomerlin vs. Dade County School Board, 318 So.2d 159 (Fla. App. 1 Dist. 1975), the First District Court of Appeals was confronted with the situation of a teacher who committed substantially similar acts on his minor daughter. The Court, through Judge Mills, stated: "Any reasonable person should know that the act performed by Tomerlin was immoral, and was prohibited by the statute. "
Because of its direct and resounding commentary regarding factual situations like that at bar and the extant legal issues concerning "immorality," "gross immorality," "moral turpitude," and "loss of effectiveness," the following quotation from the Tomerlin opinion is appropriate at this juncture:
"Although Tomerlin's immoral act was done at his home and after school hours, it was indirectly related to his job. His conduct is an incident of a perverse personality which makes him a danger to school children and unfit to teach them. Mothers and fathers would question the safety of their children; children would discuss Tomerlin's conduct and morals. All of these relate to Tomerlin's job performance.
The Florida Bar recommended disbarment of an attorney for immoral conduct with his young stepdaughter, based on that part of his oath which provided he would abstain from all offensive personality. The Supreme Court of Florida agreed, and disbarred the attorney. The Florida Bar vs. Hefty, 213 So.2d 422 (Fla. 1968). In Hefty, the facts and the regulatory part of the oath are similar to those in this case.
A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and to prepare our children for their adult lives. To fulfill
this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children."
There can thus be no question that Fort's misconduct with Darien Houston and Patrick Hammer, as related to both complaints, amounted to "immorality," "gross immorality," "acts of moral turpitude" and, as to the latter instance, "misconduct in office." Because of the great public notoriety surrounding the two incidents, the Respondent has suffered a fatal loss of effectiveness as a teacher. Additionally, as discussed herein, he has violated the related rules with which he is charged.
The incident involving his allowing the students to drink beer in his presence at his residence, while not rising to the standard of an act of moral turpitude, immorality or gross immorality, does constitute a violation of the above rule which requires teachers to make reasonable efforts to protect students from conditions harmful to learning, health or safety. Clearly the allowance of alcohol consumption by minor students in the teacher's presence is unlawful and can constitute a threat to those students' learning, health or safety because of the physical effects of alcohol on their bodies, the increased potentiality for accidents and the resultant inculcation of negative values with regard to the necessity to abide by the laws.
Concerning the other rule with which he is charged, Rule 6B- 1.06(3)(h), Florida Administrative Code, the only conduct described in the above Findings of Fact which occurred in the context of a professional relationship was the conduct involving the Respondent thrusting his hand in Patrick Hammer's pants. Regarding the "Patrick Hammer incident," the Respondent violated Rule
6B-1.06(3)(h), Florida Administrative Code, by seeking to exploit a professional relationship with a student for personal gain or advantage. That could have been the only reason he made such an illicit advance on student Hammer and there is no doubt that he was a teacher with supervisory authority over Hammer or at least was in the sixth grade class room with student Hammer in the exercise of his professional capacity as a teacher when that incident occurred.
Additionally, the incidents involving students Hammer and Houston also constitute violations of paragraph (f), cited above, since they seriously reduced his effectiveness as an employee of the School Board. The incidents became widely known amongst students and faculty and members of the general public in the Marion County area involved.
Because the incidents involving both Patrick Hammer and Darien Houston were widely publicized in the news media in the Marion County vicinity and were widely known by students and teachers at Lake Weir Middle School, and in light of credible testimony to the effect that parents and students are reluctant to have their children in the Respondent's class room or to have contact with him, it has been established that that conduct has seriously reduced the Respondent's effectiveness as an employee of the School Board involved. The violation of the two above-cited rules, is also a derivative violation of Section 231.28(h) since rules of the State Board of Education have been violated, the penalty for which is revocation of the teaching certificate.
In short, it has been established by the above Findings of Fact and the competent, credible evidence of record that the Respondent violated Section 231.28(1)(c), (f) and (h). He violated paragraph (c) by the conduct he committed involving the incidents with students Houston and Hammer, which occurred in his residence and in the sixth grade class room. These incidents, because of the wide notoriety they have received in the media and by verbal
reporting amongst students, faculty and parents, have seriously reduced the Respondent's effectiveness as a School Board employee in violation of paragraph
(f) and, together with the incident involving the allowance of students drinking beer in his presence and in his home constitute violations of paragraph (h) and the two above-cited rules. Accordingly, it has been established that the Respondent is guilty as charged by the Commissioner and Department and the seriousness of the incidents involving sexual misconduct justifies revocation of his certificate or any right thereto.
Concerning the School Board's prosecution, the evidence establishes that the express annual contract between the School Board and the Respondent expired June 7, 1985. Therefore, inasmuch as the prosecution commenced with the suspension in August 1985, it must be determined whether the School Board has jurisdiction to proceed against the Respondent by virtue of any contractual relationship as of the date of the suspension. That question must be answered in the affirmative.
While it is true that the express written contract, calling for a specified number of days of teaching expired on June 7, 1985, the principal of the Respondent's school notified the Respondent by letter that he was recommending his re-employment and the renewal of his annual contract, subject to the Respondent supplying evidence that he had renewed his teaching certificate. The Respondent in a timely fashion and before his then current teaching certificate expired on June 30, 1985, made timely, complete and appropriate application to the Department of Education for a renewal of his certificate. That application was in order and on its face demonstrated that the Respondent met all qualifications for re-licensure. Thus, the Respondent substantially complied with the condition or performance required by his employer in order for a contractual relationship to arise.
In effect, the Respondent's principal, as agent of the School Board, offered to renew the Respondent's annual contract upon his furnishing performance in the form of supplying evidence of certificate renewal. The Respondent did every act possible in order to obtain a renewed certificate. Thus, it is deemed that the Respondent, by filing a timely and appropriate application for a renewed certificate engaged in conduct giving rise to an implied unilateral contract of employment. That is, the promise or offer was made by the offeror, the School Board, through its principal which required performance in return for the contractual obligation to arise. A unilateral contract being one in which a promise is made requiring performance, rather than a mutual promise, in return in order to create a contract, it can be seen that the Respondent complied with that required performance by doing all that was necessary to obtain certificate renewal. Indeed, the issuance of the certificate became, at that point, merely a ministerial act. The Respondent received assurance from the Department, upon inquiry, before August of that year, that all was in order with his application for certificate renewal and that it would be forthcoming.
The existence of the contractual relationship is further exemplified by the School Board's conduct after it learned of the criminal charges pending against the Respondent related to the conduct which is the basis of this proceeding. The School Board, upon learning of the charges, elected to treat the Respondent as if he were a teacher under contract and went through the suspension process provided in Section 231.36, Florida Statutes. That is, the superintendent notified the Respondent that he was recommending him for suspension without pay and the School Board accepted that recommendation, with the Administrative Complaint being filed at a later time. Thus, the Petitioner
Board conducted itself at times and circumstances pertinent to this proceeding, prior to hearing, as if a contractual relationship existed, as well. There being a contractual relationship between the Respondent and the School Board at the time of the suspension and the filing of the charges, the Board clearly has jurisdiction to proceed against the Respondent concerning the truth of those charges and the question of whether the Respondent should forfeit back pay, inasmuch as the Respondent does not seek reinstatement. It is without cavil that the Respondent is only an annual contract teacher, is entitled to no continuing contract rights and the contractual period during which the suspension was imposed has since elapsed, and together with it, the suspension itself.
In its Administrative Complaint, the School Board has charged the Respondent with committing acts of "immorality," being those of such notoriety as to bring himself into public disgrace or disrespect and to impair his community service as a teacher, and with "misconduct in office," in violation of Section 231.36, Florida Statutes, and Rule 6B-4.09, Florida Administrative Code, as well as in violation of the terms of his "contract." Parenthetically, it should be noted that, inasmuch as an implied contract has been found to exist after the expiration of the express annual contract (in evidence as Petitioner's Exhibit 3), it is presumed that that implied contract is under the same terms and conditions. One of those terms and conditions is that the teacher or Respondent may be removed or suspended for "cause as provided by law." Just cause for removal or suspension is not further defined in the contract and thus the controlling statute, Section 231.36, cited in the Administrative Complaint, must be looked to to determine the bounds of "just cause."
Section 231.36(1)(a)(1983) (the 1983 version was controlling at the time the conduct at issue was committed) provides that "just cause" includes, but is not limited to, "misconduct in office." That provision relates to members of the instructional staff under annual contract in that it refers to such staff being entitled to written contracts, but differentiates from the situation of personnel employed pursuant to continuing contracts as specified in Subsection (4) of that section. The charge of "immorality" asserted in the School Board's complaint does not appear in that section related to what constitutes just cause for dismissal. Section 231.36(4)(c), however, related to continuing contract teachers, provides that suspension or dismissal may be based on immorality.
It is clear that the Respondent was not a continuing contract teacher. However, the language in Section 231.36(1)(a) providing that those elements of misconduct enumerated therein constituting "just cause" do not include all possible grounds, provides ample latitude for including a charge of "immorality," which is a statutorily enumerated basis for suspension or dismissal of continuing contract teachers. Certainly if continuing contract teachers, who enjoy more tenure rights than annual contract teachers, can be dismissed upon proof of the charge of immorality, then certainly annual contract teachers can be so dismissed. The two sections logically should be read in pari materia when considering a charge of immorality against an annual contract teacher because the just cause standard included in Subsection (1)(a) on its face is not strictly limited to the types of misconduct enumerated in that subsection. Thus, the charge of immorality will lie against this Respondent, subject to proof.
The credible testimony and evidence of record and the above Findings of Fact reveal that the Respondent committed the homosexual acts charged in the incident with Darien Houston and with Patrick Hammer. There is no question that
such conduct is inconsistent with standards of public conscience and good morals as discussed above. Teachers, being charged with a high level of responsibility and trust in molding the values and minds of young people, are held to a higher standard than many other professions regarding personal conduct which is acceptable for members of their profession. Tomerlin, supra. Without question, such homosexual advances, especially directed toward minor students, whether or not the students were the Respondent's own classroom pupils, shocks any standards of public conscience and good morals. The incident with Darien Houston, however, occurred prior to the Respondent's employment with the Petitioner School Board and thus cannot be a basis for charges by the School Board. The charge of immorality, under the above rule, is defined as "conduct sufficiently notorious to bring the individual concerned into public disgrace or disrespect and to impair his service in the community." Service in the community in this context means service as a teacher in the Marion County community. It might be argued that, because the evil sought to be prevented by dismissing teachers for acts of immorality concerns the miscreant teacher's loss of respect and effectiveness as a teacher in the community at least as much as the bare regulatory interest directed at removing one with an aberrant personality who has violated the above "public standards" by past conduct, that the act of immorality involving student Darien Houston, although it occurred before actual employment, is a justiciable charge. Certainly that conduct became the subject of widespread notoriety after Fort's employment due to dissemination of information concerning it by the mass media and by verbal discussions amongst students, professionals, parents and the public. Given the testimony of Mr. Skaggs, the Respondent certainly is in public disgrace and disrespect and his service to the community has been severely impaired. This effect caused by the immoral conduct with Darien Houston, occurring after employment by the Board is, on the one hand, seemingly as much a justification for dismissal of a teacher guilty of it as is the commission of the act itself. The problem, however, is determining how far into a teacher's pre-employment past a board may look to penalize for such past acts of immorality whose effects are felt during a teacher's employment. The above rule is silent concerning this question and does not specifically contemplate a school board's imposition and penalties for any act occurring before employment. That being the case, the best course is to rely on the well-settled doctrine that penal statutes (and certainly rules related thereto) are strictly construed in favor of an accused. See Bach vs. State of Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979; Reh. Den. 1980). Thus, the charge of immorality concerning the incident with Darien Houston cannot stand.
The conduct committed by the Respondent with student Patrick Hammer in the sixth grade classroom discussed in the above Findings of Fact is likewise deemed an act of immorality on the bases mentioned above and in the discussion and conclusions concerning the Department's complaint. Such conduct obviously became widespread and notorious because of public dissemination of the alleged facts surrounding the incident. It is obvious, given the evidence of record, the Findings of Fact and especially Mr. Skaggs' testimony, that the Respondent has been brought into public disgrace and disrespect and has had his service as a teacher in the Marion County community Significantly impaired by public knowledge of this act as well.
Section 6B-4.09(3), Florida Administrative Code, defines "misconduct in office" as a violation of the code of ethics of the education profession contained in Rule 6B-1.01, Florida Administrative Code, and the principles of professional conduct adopted in Rule 6B-1.06, Florida Administrative Code, ". .
. which is so serious as to impair the individual's effectiveness in the school system." That code of ethics provides in pertinent part at Subsection (2) that:
"The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will, therefore, strive for professional growth and will seek to exercise the best professional judgment and integrity.
(3) Aware of the importance of maintaining the respect and confidence of one's colleagues,
of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct."
The pertinent portions of the principles of professional conduct, violation of which shall subject a teacher to revocation or suspension of a teacher's certificate and which are also incorporated by reference as a basis for dismissal in Rule 6B-4.09 by school boards, provide, regarding obligation to students:
Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.
* * *
(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
(h) Shall not exploit a professional relationship with a student for personal gain or advantage."
There is no question, given the above Findings of Fact and the evidence of record supportive of those findings, that the Respondent failed to make reasonable efforts to protect students from conditions harmful to their learning, health or safety in that he purchased beer in the presence of the students and took the beer, as well as the students, to his residence and allowed them to drink beer in his presence when they were not of legal age to do so, knowing that that was not only a violation of the law, but potentially or actually harmful to their health and safety. His condonation of their drinking alcoholic beverages in his presence could serve to emotionally reinforce their desire to consume alcoholic beverages on both that and on later occasions. This obviously poses a potential threat to their health or safety, for this and the reasons mentioned regarding the Department's case. Such condonation of drinking can pose a condition harmful to learning in that it tends to instill negative values in the minds of such minor students by furnishing them at least tacit encouragement to violate the law. There is no question that this conduct occurred with students while the Respondent was a School Board employee. Therefore, it constitutes misconduct in office since it violates the pertinent provision of Section 231.36(1)(a) as interpreted by the above-cited and discussed rules.
The incident occurring in the classroom involving student Patrick Hammer constitutes a violation of the above-quoted provisions of Rule 6B-1.061 Florida Administrative Code, particularly Subsection (e) because the incident unnecessarily exposed that student to embarrassment or disparagement when the incident became known to other students and members of the public, as the record
amply establishes. The totality of events surrounding that incident and the widespread knowledge of it gained by the student's peers and other members of the community, which resulted in great embarrassment to him, also impinges negatively on that student's emotional health and is deemed to have posed a condition harmful to his learning. Thus, with respect to the "Patrick Hammer incident," it is deemed that the Respondent has violated the above principles of professional conduct and therefore derivatively Rule 6B-4.09, Florida Administrative Code, and Section 231.36(1)(a), by committing another instance of misconduct in office.
Although the conduct involving student Darien Houston caused a total loss of effectiveness in the school system and is the most heinous violation of the principles of professional conduct enunciated in the above rule, which constitutes the definition of misconduct in office for purposes of Rule 6B- 4.09(3), Florida Administrative Code, and Section 231.36(1)(a), Florida Statutes, the Respondent cannot be deemed to have committed misconduct in office with regard to the "Darien Houston incident." This is simply and only because the Respondent, at the time the incident was committed, was not yet an employee of the School Board. That incident occurred some time in October 1983 as the unrefuted testimony of Houston demonstrates. The Respondent did not become an employee of the School Board until the contract was executed on November 23, 1983. Thus, as discussed above, while that incident can be the basis for the charge involving an act of immorality because the definition of immorality in the above-cited rule encompasses the effect of the conduct, which effect occurred in this instance after the Respondent became an employee of the School Board; since he was not actually in office as a teacher so employed at the time of that incident, it cannot serve as a basis for the charge of misconduct in office. Consequently, this charge in the Administrative Complaint, as it relates to the Darien Houston incident, should be dismissed.
In summary, the above Findings of Fact and the evidence of record establishes that the charges in the Administrative Complaints of both Petitioners in these consolidated cases have been proven, with the exception noted above. Because of the high standard of conduct and trust to which professional educators are held by the above-cited rules and decisional law and because of the egregious nature of the conduct committed, a substantial penalty is warranted.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that a Final Order be entered by the EPC permanently revoking the certificate of the Respondent, Michael Fort, and that he be finally dismissed by the Marion County School District and forfeit any back pay.
DONE and ORDERED this 14th day of July 1987, in Tallahassee, Florida.
COPIES FURNISHED:
William E. Williams, Esquire Rex D. Ware, Esquire
111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302
Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32399
Sydney McKenzie, Esquire General Counsel Department of Education Knott Building
Tallahassee, Florida 32399
Karen B. Wilde Executive Director
Education Practices Commission
215 Knott Building Tallahassee, Florida 32399
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550 904/488-9675
FILED with the Clerk of the Division of Administrative Hearings this 14th day of July 1987.
| Issue Date | Proceedings |
|---|---|
| Jul. 14, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 22, 1987 | Agency Final Order | |
| Jul. 14, 1987 | Recommended Order | Immorality charge for continuing contract will lie where it won't for annual contract teacher. Homosexual act with student immorality. Lost effectiveness |
